The Coalition Wars Against Iraq and Afghanistan

in the Courts of the UK, Ireland and the US - Significance for Australia - Law and Policy Paper 26

Professor Lindell explores the role of judicial review in the conduct of foreign affairs. He canvasses five kinds of cases in the UK, Ireland and the USA which have concerned or arisen out of the recent military actions in Iraq and Afghanistan:

The legality according to the rules of public international law of the Coalition invasion of Iraq in 2003, whether raised directly in civil pro­ceedings or indirectly, in criminal pro­ceedings where demonstrators against the war are prosecuted for damaging military installations used in the war in an attempt to rely on the international illegality of the war as a justification for their own illegal conduct.

The legality according to the rules of public international law of a neutral country (Ireland) participating in the Iraq war in 2003 to the limited extent of allowing US aircraft carrying military personnel and munitions en route to Iraq to fly over and land in the neutral country, contrary to the rules of public international law that deal with the duties of a neutral country.

The constitutional legality of the US invading Iraq in 2003 allegedly without obtaining the Congressional approval required un the US Constitution; and the legality of the Irish Government participating the same war to the limited extent already mentioned, allegedly without obtaining the approval of the Dail (lower House of the Irish Parliament) required under the Irish Constitution. the focus here is on the breach of domestic constitutional requirements designed to require legislative approval for the executive to engage in military hostilities.

The legal responsibility of the UK Government for its failure to make diplomatic representations to seek the release of one of its citizens from arbitrary detention in Guantanamo Bay, Cuba by the US miliarty authorities which resulted from those authorities treating the citizen as an 'enemy combatant' after capture in Afghanistan.

The legal validity of two decrees. The first was issued by the Iraqi Govern­ment and purported to expropriate civilian aircraft which belonged to a public authority of Kuwait. The decree was issued following the invasion of Kuwait by Iraq in 1990-1991. The second decree may have been hypothetical in character. It is assumed that it was issued by the Coalition Allies and attempted to expropriate oil in Iraq following the invasion of Iraq by the Coalition Allies in 2003. It is also assumed that the validity of both decrees is raised in civil proceedings which are commenced in the courts of the United Kingdom where the ownership of the aircraft and oil is in dispute between private parties. The focus here is on the application of the rules of private international law.

CONTENTS

Introduction

Preliminary observations

Justiciability

Relationship between public international law and domestic law

The situations addressed

Situation A: International legality of the war

Situation B: Neutrality

Situation C: Legislative approval of hostilities

Situation D: Failure to make diplomatic representations for citizens detained by foreign governments

Situation E: Expropriation decrees

Significance for Australia

Situation A: International legality of the war

Situation B: Neutrality

Situation C: Legislative approval of hostilities

Situation D: Failure to make diplomatic representations for citizens detained by foreign governments

Situation E: Expropriation decrees

General observations about the judicial review of foreign affairs

Justiciability, the Buttes case principle and the Act of State doctrine